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tv   Historians in the Court  CSPAN  April 30, 2017 6:30pm-8:01pm EDT

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as expert witnesses for court cases on abortion, native american treaties, gay rights, and affirmative action. they also examine how the courts value history and evaluate sources. the organization of american historians hosted this 90-minute event at their annual meeting in new orleans. >> ok. ok, so, i think we are ready to get started. sorry for the delay, but welcome session oft plenary the 20 17th annual meeting of the organization of american historians. our session is called historians in court. it examines the complex roles of historians applying their scholarly skills to courtroom litigation. thanks, first, to the oe h for organizing this session and, in particular, to the president,
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nancy caught, for her support of our endeavor here today. today, we will address a timely topic -- the participation of historians in courtroom proceedings. there's no systematic study, but the evidence we have indicates of, for instance, scholarly amicus briefs, where scholars file amicus briefs in court proceedings, has been increasing. there's a long history of scholarly input into appellate court cases stretching back at least to the famous brandeis inef in a supreme court case 1908, but for our purposes, our pedigree as historians might be traced back to the brown versus board of education litigation in which the distinguished cptorians helped the in aa
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casee naacp make the against school segregation. more recently, 400 historians signed an amicus brief in the case of webster versus reproductive services, the abortion rights case from 1989, tell youanelists will about things that are both older and more recent. in addition, historians testifying at trial has a quite long pedigree. as jay morganh cows are began testifying in voting rights cases. it has a more recent history that goes through a bunch of different kinds of cases, which you will find out a little bit about today, including things like tobacco litigation, in which the role of historians has proven quite contentious. finally, we should understand that this is a practice and a beyond thet extends
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nationstate of the united states. in fact, there is a long history of this outside the bounds of the united states, stretching back at least to the testimony of historians in the adolf eichmann trial in 1961. in france, the famous frankfurt which az trials in distinguished french historian declined to participate in the proceedings because he thought it compromised his role as historian. you might know professor russo more recently as the person who thestopped for 10 hours at houston airport by immigration authorities a couple of months ago. so there is a long and contentious history of this practice. we have for quite distinguished historians who will explain it for us today. it's of them will do a short presentation, talk a little bit about their work in this area and some of the issues raised by
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it, and then we will do a little bit of a roundtable discussion. after that, we will open and broaden the discussion to the audience. do not really need much introduction, so i am going to quite briefly go through there quite long and distinguished biographies. we will go in the order they are presented in the program. first, we will have linda gordon, who is the university professor in humanities and florence kelly professor at new york university. she is the author of, among other things, cossack rebellions , heroes of their own lives: the moral property of women, pitied but not entitled, single mothers and the history of welfare, the great arizona orphan abduction, which when the bank or prize for the best book in u.s. history,
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and her latest book is called the second coming of the kkk, the ku klux klan and the .merican political tradition second, we will hear from richard wright, professor of american history at stanford university. professor whyte is a recipient of numerous honors, as are all of our panelists today. received jury .election finalist he's also the past president of this organization, the organization of american historians. he has been a macarthur fellow. various other awards and prizes, including a guggenheim fellowship. he has a forthcoming book entitled the republic for which it stands, the united states during reconstruction and the gilded age, agents exceed 5-1898, which is part of the
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oxford history of united states series. he was the author of, among other noted works, railroaded, the transcontinental's and making of modern america, remembering -- is that right? thank you. family'sing and a past, the organic machine, middle ground, indians come in hires, and republic scum of the great lakes region, 165218 50. it is your misfortune and none of my own, a new history of the american west, the roots of dependency, subsistence, environment, and social change among choctaws, navajos, and cherokee. next, we will have a similar night professor of history at yale university. he is the author of gay new york , gender, urban culture, and the
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making of the daily mail world, award, and whyeh marriage, the history shaping today's debate over gay equality. in 2012, he was awarded yale teaching prize to yale humanities primarily for his lecture course on u.s. lesbian and gay history. after professor chauncey, we will hear from the daniel ps paul professor of constitutional .aw at harvard law school she has published articles and book chapters on the supreme court it with jurisdiction jurisprudence civil rights history, and among other places, the yale law journal, the harvard law review, the columbia love review in the journal of law and education. her 2011 book, courage to longnt: atlanta and the history of the civil rights movement, won the bankrupt prize
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in u.s. history. mack, thekenneth lawrence dbo professor of bealcan law -- lawrence d professor of american law. we will start with presentations by each of our panelists, who will either stand or sit at their discretion. starting with professor gordon. ms. gordon: thank you also much for coming, for finding the right room. thanks to nancy off for having this idea. charles dickens wrote that the law is an idiot. i have taken this idea entirely out of context. it was actually mr. bumble who said that in all of her twist, but i think the point is sometimes on the mark. i have learned that law has only a partial overlap with justice.
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that fact, however, has greatly increased my respect for the many lawyers whose creativity works to try to bring law and justice closer together. people i have learned an enormous amount from. i'm going to talk about three experiences of my own and one that was not my own but led to a notorious decision and a great deal of activism. to sylvialved thanks law in writing several amicus briefs. my novice experience was in webster case 1989. we wrote a brief that was eventually signed by 400 historians in an attempt to overturn a missouri law, which
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began with a preamble stating that the life of each human being begins at conception and that unborn children have protectable interests in life, health, and well-being, and then it went on to install many, many regulations to make it harder to get abortions. i'm not going to name them, but it was really a wake-up call about how difficult it can sometimes be to translate .istory into legal arguments the group of us creating this brief developed arguments based on evidence from our research. in a 19th-century campaign to outlaw abortion -- it was legal before this -- physiciansrt from newly organized into a professional organization who sought to prohibit services that had traditionally been provided by lay women -- you know, the midwives. it was also possibly a racial
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motive that had to do with fear that the white birthrate was by the birthrate of people of color. most importantly, we all knew the real main impetus toward the ban on abortion was was a resulte it of a great anxiety about women trying to leave their god-given place as housewives and mothers. what we try to show in this brief at first was that prior to this ban on abortion, which took place throughout the state and in agencies to three, the federal level, abortion had been fairly common and not prohibited . the problem was it was not is it to fit that argument into categories appropriate to legal of whatation because courts considered as authority. we think of primary sources as
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our authority. but the court, by contrast, deferred if at all not to primary sources but to the scholarship of experts. that was a problem for us because at that time, to the best of my knowledge, only one such expert existed, james moore tossed 1978 book about abortion. a second difficulty came from the fact that we were reluctant to treat the practice of abortion before it was prohibited as an either/or legal or not legal matter. the absence of laws specifically banning abortion did not necessarily mean that all americans saw it as legitimate. opinions differed. but such a nuanced conclusion would not work in our brief. third, -- second, behind our emphasis on the frequency of abortion prior to its
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on anition, rested assumption that was really difficult for us because we would have rejected it in another context, the assumption that what was traditional should be respected. we had to get into this question of traditional because of antiabortion activists calling for "traditional" family values, but tradition does not, of course, always lead to good policy, nor is it something we all would like. later -- and i might point out that in the webster case, none of us would have predicted that this country would still be fighting about later in-- 27 years 2016, a smaller group that included nancy caught, linda kerber, and alice kester harris as well as me came together to a texas amicus brief at case, with texas following the
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same strategy as missouri. it had installed a series of regulations on abortion providers, and again, i will not go into what they are, but what is important here is that the texas claim was these regulations were designed to protect women's health. just one example -- they wanted abortion clinics to upgrade their building safety, parking, and staffing to meet the standards of a hospital. these laws collectively are known as trap laws, targeted regulation on abortion providers, and what is, of course, striking about them is that these abortion clinics work the and required to meet higher standards than many even ambulatory surgery clinics. we work very fast. we worked through email, and we demonstrated that such allegedly protective laws had historically been motivated by discriminatory assumptions about women, that
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what was called protection, in fact, disadvantaged women and served to confirm their subordination, including loss that "shielded women" from the corrupting influence of politics and voting, that sheltered them from hearing sorted evidence by keeping them off juries, by protecting them from dangerous being pharmacists. we even pointed out the contradiction such as that women were allowed to service waitresses in bars, even sleazy bars, but were not allowed to serve as bartenders. we also had some precedent on because the supreme court had recognized that such by anere "rationalized attitude of romantic paternalism, which in practical effect put women not on a
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pedestal but in a cage. on supreme court ruled 5-3 our side, and i want to make it clear that i have no reason to believe that our historians brief had any great influence. there were hundreds of briefs, and evidence from the present day was probably more important. at least i in particular, constantly came up against the advice of our very wonderful and distinguished lawyer, kevin fong, who kept rejecting arguments that we wanted to make because they did not raise constitutional issues. his hope was absolutely wish i had and i understood before i started some of the things i now understand. my worst experience with the law is from a very, very individual case, a case of race
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discrimination in which to my horror, i was cornered into .upporting the discriminator a graduate student of mine, to whom i was very close, and african-american woman -- this as when she went to look at university apartment listed as available for rent but was told it was taken. it happened that she was married to a white man who went to see the apartment and it was offered to him, so they sued. the damages they claimed include the fact that the humiliating of a stressful experience discrimination on top of her long experience as a person who came from arkansas, the victim discrimination and harassment throughout her childhood, that these two things combined had slowed her progress toward a phd
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. then, to my shock and amazement, the defendant's lawyer, that is the landlord's lawyer, subpoenaed my records on the student, and i was astonished to learn that had to turn them over. he was a landlord with very deep pockets. what my records showed in the questions put to me, i was forced to acknowledge that before this discriminatory event, my student was already progressing more slowly than was standard among phd students. my attempt to argue that race discrimination contributed to .er stress made no impact my testimony and records became part of her losing her case. the same kind of legal blindness casered, i think, in a
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in 1977.eneral motors it has become notorious. five african-american women allege they had been denied promotions because of the seniority system and the last hired first fired layoff policy perpetuated the long history of previous race and sex discrimination. their complaint fit neither racist coronation because black men were not being barred from jobs, nor sex discrimination, because white women were not being barred from higher-paying jobs. the court said the lawsuit must be examined to see if it states a cause of action for race
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discrimination, sex discrimination, or either, but not a combination of both. happily, this decision infuriated legal scholar kimberly crenshaw, as well as several others. in crenshaw's critique, she created the term intersection analogy -- intersectionality, which is a term i have studied recently, so i know it is not only an academic term but is used by activists all over. it points to an understanding of social identity in which traits are not simply additive but also transformative. that is, a black woman's identity is not simply a sum of blackness and woman this.
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it also offers an opportunity for historians to interrogate the social categories and understand them as dynamic and interactive. one of the things i have concluded from all of this, at least from my experience, is that when lawyers want to use experience and the knowledge we to instructy need us. in fact, i sometimes wonder if it might not be a good idea for all historians to take at least one course in a law school. asking them to instruct is a tall order for litigators who do not often have the leisure to proceed slowly, but i think many of us historians would actually if the outcomets could help bring law closer to
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justice. [applause] mr. white: i'm actually surprised to find myself here. because of the danger that opposing counsel could use whatever i said to oppose the case arose working on. this is one of the complexities of being an expert witness. i try to craft my answers as rigorously as possible to the .tandards of academic history i could destroy the utility of my account.
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the price of articulating a past becomes silence. i'm now old enough and the treaty cases take long enough to doe it unlikely that i will any further reports, so this is no longer a pressing concern. i have enormous respect for the lawyers with whom i have worked over the years. we belong to different tribes, both of which are rule-down and the rules for what counts as truth under the law and truth as historians are not the same. we want different things from the past, and in a treaty case, we need to find a place where our concerns converge.
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they only narrowly converge on .hat counts of evidence my work as an expert witness can seem to my academic self narrowly empirical and theoretically naive. i have to answer quite specific questions about what happened in the past and how the people involved understood it. i have produced over the course a body oft 40 years unpublished shadow scholarship in the equal in bulk to my published output. i've worked with the ottawa and chipola, the various tribes of puget sound, and more -- i have worked with the ottawa and chipola -- chippewa. i have written reports for tribal recognition cases and
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once at the end of the case, i was told the report was being paid for by donald trump. i should demand payment before i delivered the report does otherwise i would get stiffed. my report had not said what those paying for the report wanted. ofill never publish lord those reports, at least on my own, even though i'm proud of the work. one major report concerned tribal -- tribal treaty rights to shellfish in puget sound, and it involved analyzing a phrase. i have to explain the contemporary meaning of the terms "usual and accustomed laces" and the term "except in laces state and cultivated." i placed those few words into a report that ran several hundred pages. the research led me to my considering myself for a time the country's leading historian of oyster cultivation, a title
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to which i've never aspired and to which i did not have much competition. as an expert witness, i have experienced some of the most gratifying moments of my career, put a historical knowledge to work in ways that made our professional standards -- allowed our professional standards to make an immediate difference in the world. using this has left me wary of the endeavor. a new book i one of my colleagues at stanford has made me recognize my work as an expert has its own history. of the old courts. it has been awkwardly grafted onto the adversarial tradition of american jurisprudence that overthrew and replaced the old equity courts. i am implicated for the best of motives in a set of practices of which i would rather not be
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part. i do not regard fee-based governance as a good thing, but as an expert, i am part of it. i do not think adversarial procedures are the best way to settle matters of historical facts and interpretation. that is what i engage in as an expert. forcingays uneasy sometimes conquered and impoverished peoples to defend their rights, land, and very identity in forms that are not of their own choosing, but that is what the tribes have to do. yet, i do these things willingly because they are better than the available alternatives. federal courts have over the last century done the tribes some good. .ut i am not naive this can change very, very quickly. the native american rights fund and the national congress of american indians are actually cautiously supportive of judge neil gorsuch's nomination to the supreme court. , ignorances faults
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of indian treaty rights is not a time when but at indian treaty rights teeter on the edge, i'm conscious that what i discuss, what i discover, and what i say means far less than those i say it to, and that is worrisome. thank you. [applause] mr. chauncey: i'm going to stay seated. i have been involved in more than 30 cases at this point, and i second richard's comment about feeling like as much -- feeling like i have as much unpublished work as i do published, probably more at this point, but most importantly, five gay rights cases have reached the supreme .ourt
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the establishment that same-sex couples had a constitutional andt to sexual intimacy, free marriage cases decided by the court in 2013 and 2015. before going any further, i would like to take this opportunity to thank the leadership of the ldh, which agreed to submit amicus briefs i had written for them. it was not an easy decision for them. they had not done a lot of this before, but in doing so, they 'sovided the organization premature to a generation of historical scholarship by its members, many members, working a long time was not supported by the profession. it meant a lot to >> i want to thank our president
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nancy cotton. -- cot. she has dedicated an unbelievable amount of time to working on these cases ever since she testified below the as itt state legislature was wrestling the issue back in the state union days. i want to honor nancy for doing that. we can talk about the different ways that historians participate in legal cases. the different challenges that are associated. i prepared an affidavit. this is with historical references relevant to ever the case is being heard. prepared this. i have also signed things prepared by nancy. i have testified in two trials
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that have reached the same court. -- supreme court. i found that to be very different. we can talk about those differences and talk about some of the complexities of what it means for historians to engage with lawyers. in my opening remarks i would like to address how much history has mattered to the courts by discussing two of the cases. the sodomy case in texas. to make isint i want that i do think historical narratives can -- computing historical -- computing historical narratives have played a role in these numbers. they give and take of the narrative. there are particular bit of historical evidence that are closely disputed. themselves,ions even in the trial, it is the
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broad contours of historical narratives that have matter the most. this makes sense in a way. i would be curious to see if this particular, of law cases -- particularly reproductive rights and gay rights. i am not a lawyer or a low professor or a legal historian. inn i read legal decisions these realms of constitutional law, they often read to make like history essays or precisely like historically graphic essays. we are looking at key sources. various trends of interpretation. thathistorical accounts try to understand and make arguments about the meaning of the law. mattercal narratives because courts don't rely on
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historical graphical analysis of legal precedents but also because they pay attention to tradition and history. they need a more wide-ranging and precise narrative of constitutional -- how constitutional principles have been interpreted. also, the social attitudes that they represent. of course, different justices understand the role of disk -- history differently. scalia might focus on what -- history might stop there. some historical junctures. justice anthony kennedy who has written all of the court's gay-rights decisions since romer v. evans in 1993 is one of those constitution the
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is a living document. our understanding of the liberties and the quality that it guarantees has expanded over time in response to protest and new social conditions. he is very much a historical thinker. he has responded to historical arguments and incorporated them in his decisions. courts, there are always competing historical narratives. we can cd significance of these see ting narratives -- thesegnificance of competing narratives. the supreme court upheld the right of the states to criminalize homosexual intimacy. saidajority of the opinion it was facetious to imagine that a right to engage in homosexual sodomy could be found in the constituion.
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-- constitution. history also mattered when the powers.versed bowers -- they developed the argument made. history of sexual regulation was more complicated than this. first, because the nation's history tradition showed relatively little concern about sodomy. laws were rarely enforced before the end of the 19th century and almost always and even after that in cases involving collection -- color should. historically -- coertion. nonappropriated -- penalized most non-procreative sex. often, for instance, not
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penalizing sexual intimacy between women. they were not the equivalent of homosexual conduct. the were different from texas homosexual conduct law. it had singled out homosexual conduct for penalty. made itsfter the state sodomy law. it reflected a 20th-century form of anti-gay discrimination. justice kennedy developed a similar analysis in his opinion. equally important was a historical narrative that we try to -- tried to develop in the break about how laws have been changing. not suddenly break or the examples we have used. developed on privacy cases
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from griswold. were developing the scope protected by the due process. as he later put it, citing the 10th circuit, a quality has always meant the same thing. theave come to recognize humanity and full solution -- citizenship of people disqualified. it is a deeply historical analysis. history played a key role. not anyway i had anticipated. in the past, the court had said the laws that single out a particular group or differential treatment should receive heightened scrutiny if that group had historically been subjected to a history of discrimination. they had not had the political
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power needed to find it. that history makes singling out that group suspect as the courts put it. that means the state has to more evidencede for those laws. to argue that laws singling out gay people need to receive such scrutiny. it did not. a couple of circuits have made that stand but the supreme court had not. it had not introduced any new groups and called them productive classes. again, kennedy did embrace and develop the disorder -- historical narratives. the first section of the decision is dedicated to the history of marriage and to anti-gay discrimination.
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shifting attitudes in american society about homosexual persons. he drew extensively on a brief that nancy caught had prepared. this showed that historically, marriage had survived as an institution because it had fundamental ways. many of those changes were seen as revolutionary and frightening in their own time. they were changing the status of gay people in america. how long, history had denied their ending and how social changes and the insistence of gay people and gay couples themselves had set in motion a debate which would help people appreciate the injustice of previous policies. i think i have already gone on too long. myill and there to say that
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sense is that history plays out differently in different times -- kind of law and different kinds of cases. it has been my sense that historical narratives have been absolutely central to the way the court is understood -- has understood what is at stake in these cases. [applause] ms. brown-nagin: good afternoon, thank you for inviting me to participate on this panel with this thing was historians talking about timely and important issues. unfortunately, the question that wasnt to talk about foreshadowed perfectly by professor chauncey. that was the question of what accounts for the supreme court's treatment of historical evidence of otherrate treatment
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submissions. andne account, the quality the truthfulness you might say of the historical evidence court'sd determined the response to this evidence. that is not quite my view. i would not say that the quality or the truth of the historical evidence is most important to the court. , it takesmphasize nothing away from historically scholarly productions. i've admired much of what comes before the court and what is cited by the court. instead, it is to talk about the legal process itself. theorythat judicial about the proper modalities and sources of interpretation when
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considered in the context of a particular legal question determines how and whether history matters in courts of law. in particular, in the supreme court where i have some experience that we are all focused on. as i interpreted sources and approaches, i need to refer to judges preference. perhaps as originally understood by the kramers or by the public or to privilege constitutional structure in relationships. precedent has the big only authoritative in certain cases. inparticularly authoritative certain cases. this is about fundamental matters that arise again and again in the many cases where
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historians are called upon to discuss the meaning of the equal protection of the law. asean matters such federalism, the proper conception of state's roles in our political systems. concerns about carving out areas that are protected from federal incursion. a worldview that privileges or sees certain social and economic powerarchies as normal. is these issues that are the true domain of lawyers and the courts as they litigate and to the kate -- judicate cases. i see it, history is an add-on. it is a source of evidence or context to which most judges and
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.awyers turned to -- turn to usefulextent that it is in the case. judges are trying to answer a question, they are not trying to write an article to be accepted in american history for careful scholarship. and lawyers invoke history, they do so without due guides historians. due regard for nuance or forification of claims consideration of contrary evidence and other ways of proceeding that were taught way back in graduate school. that is to say that the legal approach to history is functional which is why some --e called lawyers's history
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history lite. that is a descriptor that seems more or less on point. i want to talk for a few minutes on the notion of history lite on race cases. the impact of legal professionals views are especially apparent on these cases. in paticular. -- particular. they will mediate about social and political inequalities that are rooted in this nation's jim crow. slavery and areas that lawyers and judges have generally had little expertise. they are not that interested in areing about the cases that
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brought to them by the civil rights lawyers for instance. factorsternal cases -- are almost always outcome determinative. i want to emphasize that this seems particularly true in race cases where the outcome often reflects the ideological thoughts of justices. also, the time, with respect to race. take for example, the affirmative action cases. in the early decades when the courts adjust -- address those cases, some justices alluded to the long history of reconstruction. also, the history behind legislation to justify upholding affirmative action.
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justices who were opposed to those policies as they came down that way tended to not dig into that history. frankly, because of the work of reconstruction, congress tended to not support deep skepticism about remedial rational programs -- racial programs. over time, in affirmative action cases, there is a tendency to orore historical records dismiss the relevance of the history of past discrimination except to invoke it to stand for the principles that government past when itthe discriminated on the basis of race. this is reusing history at a very high double of generality. another approach is actually to
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read into history very specifically. ais way, it is impossible for plaintiff to prevail in a race discrimination case unless there is a very neat fit between the alleged claim and historical evidence. cases,e sees in those particularly the ones where reason at a high level of generality is the history of discrimination against african americans is invoked as an example of what was wrong in the past. taking race into account. instead of the more nuanced discussion about perpetrators and victims. now, i want to spend a few minutes talking about my cases astion in a few
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counsel of record. when i meditate on how history does matter on the occasions where it does in fact matter. the first case i will mention his parents involved versus community schools. this is the 2006 case where i submitted a brief along with a number of historians of the civil rights era about the history of discrimination in louisville and in seattle. the point of the exercise was to try to break down the andinction between the jury the de facto segregation. it tends to inoculate northern and western cities from liability in school segregation cases. seattle was really the focus of that work. everybody knows about -- many people know about louisville's racial history. not everyone knows about seattle
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-- discrimination in housing and schools in seattle. the land of starbucks. the long and short of it is that the kind of approach that we are talking about didn't work. history was leveraged in that case but for an entirely different purpose. for what you might call historical gloss. is what i mean, chief justice roberts and his morality of opinion cited arguments by naacp lawyers out of context. againstld say, to argue the policies that were adopted against -- by school systems. he said that when it comes to assign race to children in school, history will be heard. then he referred to the arguments made by the lawyers to say that color was more faithful
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to the heritage of brown. ends withice roberts the way to stop discrimination on the basis of race. that is how he uses that history. that is an idea that has the virtue of being rhetorically forceful but not -- i would appropriate to the context that marshall made his arguments. the basis of history. another case in which i -- icipated was along with others, i supported a
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-- y i supported a party in that case that was supportive of the affirmative action case. the litigants were on the winning side of -- in that case due to the decisive votes of justice o'connor who was deeply committed to the concept of diversity embedded in the case. the thing to note is that the concept of diversity is used powells used by justice was conceived to move beyond the complexities of our country's racial history. in other words, it is not so much the history that mattered in that case. --was the president and
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precedent and the context. for a i was cocounsel party in this other case. we relied on the blends of history and social science to argue in support of the idea of diversity. that is to say that the way in which we abdicated involved -- in keepingvolved with the court's preference for not discussing history. it was in keeping with justice kennedy's power on the court, his swaying vote. i should note that given y,ofessor chomsky -- chaunce he is not really interested in the history of discrimination
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very much at all. reason at the very high generality of the harm that can flow from taking into account the race. that is a lesson that one could draw but it is not the only lesson. in conclusion, what is to be realabout the very methodological differences between law and history. or be historians refuse skeptical about participating in the legal enterprise? i would say no. some of us have to engage. courts will turn to history. we just as well offer up the history that we can offer. in keeping with our professional standards in hopes that on the
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margin, it will matter. i will go back to brown versus , the way tocation think about historians in the court engaging with history is usefully made in that case. john franklin and other -- orians noted they did reason about history in that case. ultimately, it was conceded that the history couldn't decide the case. chief justice warren and the courts conceded that history could not decide the case. of what that question level to reason. asuld history be understood supporting a broad theory of equality or is it that 14 amendment history can be understood as supporting a ban on school segregation.
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those are very different questions. in admitting that he history could not ultimately be decisive, there is a commendable intellectual honesty in brown and perhaps historians should aim for that middle ground between being useful to advocates and being true to the profession when we engage the legal process. thank you. [applause] >> we will have a brief roundtable among the panelists. see three sets of questions emerging from the various presentations. first, there is the question surrounding what we might call ethics. historians participating in briefs or trials, expert testimony in trial, are you -- doesn'td upon
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clash with your role as a historian and how to navigate that. there is this question of effectiveness. day, was the the effective?on how did it matter? why did it matter? third, there's this question about litigation and the role of the professional historian primarily producing scholarship and teaching. teaching that litigation is a different enterprise. how do you navigate the fact that this is what you are doing and what you do in your professional life and what you're doing in litigation are sort of different enterprises. if i could put you on the spectrum, i would say that professor chauncey is more
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optimistic on all three of those dimensions. skepticism. of various degrees of kinds of skepticism from the three of you. i divided about this myself. i may be the only person on the panel that has been on both sides. when i was a lawyer, i hired expert witnesses, i hired historians to testify at trial. we want to the report -- wanted the report that was favorable to our side. we wanted the person to be an ethical historian. we wanted to report that was going to be favorable to our side. anything else, we would not be satisfied with. at the end of the day, i felt we were being ethical and the historian we were hired had been
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ethical. the historian at the other side, there are all kinds of complicated things. i signed one of professor brown higgins amicus briefs. this process, having participated, how do you all feel about this? what a we start -- why don't we start on the effectiveness of what you have done. do you feel like it was worthwhile? would you advise other historians to do this in the future? elaborate a bit. if anybody wants to jump in. i would like to say that certainly, i am entirely in favor. i would do what ever i could if i was asked. even if i thought it was not useful, it is a matter of principle.
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i do see one conflict that you might describe as ethical. when i am working with graduate , i insist that if they are writing about a policy or a person that they don't like, it is their responsibility to present that without kerry capturing it -- carry catcher -- caricaturing it as supporters of that policy might. i would not be asked to do that. asked ton: i would be present one side of an argument. i don't know what to do with that. i don't think that tension is resolvable. i think it is there. i see my role a little differently. one of the most useful things i can do is give lawyers that is
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before the hearing in court. they want to know what the week part of the case is. when i say i cannot argue this, if there is this, anybody decent on the other side, it will be shot down. i am doing my job. if i was working for donald trump and i didn't give donald trump what he wanted, that is a good thing. that is not a bad thing. i'm trying to be the ethical historian. mr. white: if i give good news or bad news, if it is good history, i am doing my part. the lawyers have to make a case out of what i say. it is not my job to make the case. >> i think i have been working in cases where the court has made a series of rulings for gay-rights, rather than stepping back on affirmative action voting rights and a whole host
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of other issues. i said at the beginning, i think it depends a lot on the kind of cases that you're talking about. that i would come on many cases in which justice kennedy role. mr. chauncey: i think he has paid attention to history now. what i have written history the no.he did, i usually write 400 or 500 paid -- page books. i don't make supreme court decisions. in terms of the ethical issue -- let me say that in my own work -- constantly struggling with evidence.
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i do make large arguments. i think we are expected as scholars to make large arguments with proper context to the nuance and the contradictions. they often get lost in litigation to be sure. the idea that we are making broad arguments -- in terms of the ethical issues, i am not naive. i am aware that litigators come to me because i have a record of publication that suggests i y, and z enzi -- x, about the this sort of record. i don't think we are selling to the highest bidder. there is always a delicate negotiation with litigators. they would typically like us to
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-- they have often asked if i could make an argument about x or y. that i didn't think it was sustained by the historical evidence. if i said no a second time, they accepted that. their primary interest -- particularly in a first that would testify on a series of cases is protecting our credibility as experts. i have been very clear about what i think is a reasonable historical argument and what is not and have drawn a line. at the same time, i agree with richard white. the pressure comes from opposing depositions, the trialination, and itself, they will try to use anything you have ever written
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or had ever said against you. are key differences lawyer's storians and lawyers'approaches. they will call you on it. scholars actually appreciated when a historian engages with evidence and changes his or her thinking over time as more evidence comes to light. argue --counsel will you said this once and you are now saying that, doesn't that mean you are contradicting yourself? you are just being an advocate. there are in or miss tensions involved in doing this kind of work. at the same time, how can we not do this kind of work? history matters in these cases. as reliable and
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certainlyif condensed versions of the history will be helpful to the court, i feel an obligation to do so. i think what we should do now, i am wondering if any of you want to respond to anything that anyone else has said. something that jumped out at you? something that provoked you to think about an issue? i think we will open up to the audience after that. i want to give the panel a chance to respond, to elaborate on things they have said. anything that has jumped out at you? >> i was pointing to the other -- the salience of other types
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-- for instance, i would consider participating as counsel in certain types of cases but probably not raise cases. ms. brown-nagin: i think that usesupreme court doesn't the history in a way that is in keeping with all of the time and energy that it takes to work on these cases. you don't want to do all of work and feel like the court isn't taking it seriously. on the other hand, i would do that. i have often turned down the opportunity to participate where tos of people are signing on an amicus brief. in an area where i know something but i don't know that much about what is being asserted in the brief. i think that is a different kind of animal.
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i'm pretty skeptical of those sorts of endeavors. supportivei am very of the legal issue that is being argued. >> i think she raises some interesting issues. are assignedriefs by a large number of people. mr. mack: there is a brief circulating, it comes to you and you have to decide -- somebody else wrote it. has an article that says that we should be skeptical about signing these things because they are not -- we don't know all of the authorities cited in the brief. we are cited as scholars. i struggle with that.
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sometimes i have just said no. i feel like i don't know enough. you have to leave it at that. let me open up to the audience. we started a little late. we may go a few minutes over. this is a hot and provocative topic. intorians have reviewed litigation, they have never emerged unscathed as the panel here can attest. some of you may have done this, some may have questions about it. do we have microphones in the audience? i think we do. questions?
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>> i will shout. [indiscernible] it seems very nerve-racking to stand -- [indiscernible] the question is asking the panelists to reflect on what brought them some degree of satisfaction. what brought them some degree of pause? does anybody want to tackle that? >> that is pretty easy. the satisfaction is that it is incredibly rewarding to see the
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kind of historical scholarship you have dedicated your life to reducing having influence in a way that i never imagined might happen. court.mattered to the the details of history. there is a complicated -- downsides -- one, it takes an incredible amount of time. forertainly get recognition having done this work. the first question i get, if not directly, i can see it in their eyes, why haven't you finished your next book? it has taken a lot of time to do this work instead. i had decided that this work seemed more important to do at the moment. it is deeply distressing to me that my book is not out yet. the second thing is to say that it is not much fun to be cross
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examined. i have used this analogy before but i will repeat it. examinedosed or cross is like taking your orals. you know you can be asked about anything. you don't know where the conversation will go except that like in most oral exams, the person listening you -- questioning you does not have your best interest at heart and would like to see you fail. others want to jump in question mark ms. gordon: i think the pleasure of writing something with others. it is not an experience that we have had very often. one of the things about history compared to other disciplines is co-author things.
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i think it is a great experience. the others -- other part of it is we are learning about the law. i would have gotten that otherwise. the other part of the problem, i have been on the losing end so much that it has been important to me to see the courts as completely political and responding to what is going on in the country. otherwise, i would think that my coworkers and i have been failures. i don't think that. ms. brown-nagin: i want to second the reference to the building the community aspect of this work. it is something that makes it worthwhile to work with your colleagues in support of an issue, a cause trying to find an
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answer. i have fond memories of doing that in a number of instances. as to the downside, i have to say that the worst thing is having your work cited for thinkition that you don't it stands for. particularly in a court case. one of the briefs i wrote was cited by a justice and not in the way i meant it. that was not fun. second. the community i work with -- i have worked with a set of lawyers. i have enjoyed working with them, that is worthwhile. the most worthwhile thing -- the work we do will make a difference in the world. nothing else i do makes a difference as quickly in the world. the world can change when you win these cases. on most of the cases i have been
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involved with, they have one. i would also say that i don't find big cross examined as unpleasant. i find it to be the one time where this person is your enemy. this person is not going to hurt your graduate students. this person is standing and trying to get me to say something untrue. i can go at that person as much as they go at me. i really enjoy it. cross-examined, you have no idea how ridiculous the whole thing is. the justice sitting here, the lawyers facing you, the other lawyer is doing this -- rolling his eyes. wondering -- i was wondering if this was the third grade. i enjoyed that part of it. , is i don't enjoy care about the details of 18th
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century oyster cultivation. worldght why in the and i spending all these hours learning this stuff? only a court case can force you to examine the most uninteresting part of it. mention, this is a biographical suggestion. this is something not many people know about. had a testimony against the tobacco companies about -- this is back when tobacco companies were shown to know that tobacco smoking was carcinogenic and were denying it. there is a book that is an analysis -- it presents the whole text of the cross
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examination that ellen was subject to. it is an interesting book if anybody is generally interested in this kind of thing. >> another question, go ahead. [indiscernible] mr. mack: let me repeat the question. shadowd the term scholarship and asked if any of the panelists had a given thought to publishing some of what they have produced in the cases. ms. gordon: i think penn state -- a scholar at penn state theished as a book, some of
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amicus briefs filed in the fisher case. ms. brown-nagin: i thought that was a great idea. to say what the in manyft out instances. to see what kind of conversations the scholars were happy -- having. the ones that the court were not having -- was not having. there are parts that might be useful and available. -- tribe wantsce to posted it, that is not my decision. thattalking about things haven't been raised by the families involved. i'm not going to be the one that
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intervenes. i produced it for them, they can do what they want for it. i can assure you that virtually nothing i have ever written for will bring closure in five minutes. mr. mack: the question over there. i had a law degree. i was wondering how i could contribute to society as a historian. effect. very sobering i was wondering if you could -- k in little bit about even though, you have all the -- acknowledged the
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consequences. mr. mack: the question was about the civic and public duties of the historian with regard to the participation of the panelists and the cases they have been involved in. i tend to think of it as a responsibility -- a citizen like responsiblity. if i had some expertise that could be used in the pursuit of justice, i think people should do it. i think it is really difficult beingot of cases because a good historian has to be handling -- tension in the material.
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that is very hard to do in a court case. thing.nt to say one this has to do with the time that they subpoenaed my records. i want to say that if i had known it, i would have thrown them away. it would have been illegal but i would have done it. i think we all need to be very concerned about most of our records being online. i think this is an issue about which academics should be better informed. >> if you know that litigation is possible, don't throw away your records. you may have committed a crime. others?: let's do an exit question.
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i want to give everybody a chance to wrap up and deliver some final words. you can either respond to my question or deliver final words of your own choosing. the question i had was about justice. part of what you have all been talking about, as long as we have had a legal system, we have had many people who experience it as an alienating process. it had existed in some tension with the word justice. substantialave had experience in the legal system in your roles as historians. at the end of the day, do you feel as though your participation promoted justice, however you define it? maybe you might want to define it. how would you describe your participation along those grounds?
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or take any other exit comments you would like to make. voiced, aice is conception of justice is voiced, giving voice to the people in the margin, the history of the people on the margin, perhaps some of what i have done has been in the interest of pursuing justice. even if thegin: side that i advocated for did not actually prevail. a socialhat as historian, it is very important to me. >> i was involved with litigation. withrst became involved these tribes when i was young. i was involved.
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they heard me when i became an expert witness -- i testified in a case where they won. they won a fairly substantial judgment. i realize that far more than anything, politically i had done, my testimony in the court had actually done them some good. that was gratifying. that it certainly didn't make up for the 150 years between. it was something. in some cases is all you will ever get. >> i have to enter a obliquely. -- answer obliquely. panelsbeen on numerous
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with law professors or litigators around reproductive rights issues. i often have one difference with the lawyers. this is a case where i think i am right and they are wrong. i think that the lawyers can get into this mindset that it is only what you can -- if only you can come up with the right argument that can reach this particular swing judge, if we argument, weat didn't win. i have a much more political notion of what is behind judicial decisions. judicialhat is behind decisions. question,onse to your i don't go out looking for these cases. i would rather --
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they have taken a lot of time and energy. when a lawyer does call and ask you to get involved with something like this, i think it would be impossible to say no. a duty ofis citizenship to be able to participate in some way in this process. illuminate it helps -- the more we talked, the two of us, richard and myself have been involved in cases where we have been on the side where the side has one. the other two have been on the side that lost. complaints that i lawyers, thet pressures that i felt under various points from lawyers, the different ways that we want to use evidence, i have to say that i mostly come away from this process with enormous respect
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for the lawyers. lawyers of about the glad and elsewhere. they really dedicated their lives to this sort of work and bring a kind of incredible empathy and often a very capacious social justice vision to the work that they do as well as amazing strategic brilliance. as others have said, i have learned so much from them. be said,hat should along with all of the other differences we might have an problems we might have and that translation between litigation and historical scholarship. mr. mack: thank you to the panelists. [applause] mr. mack: thank you to the oah. thank you to all of you for coming.
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>> interested in american history tv? visit our website you can preview upcoming programs and watch college lectures, archival films and more. american history tv, at >> the fcc chairman from -- proposes reversing the obama at -- -- i share a proposal to reverse the title too. and returned to the regulatory framework that served our nation so well during the clinton administration, the bush administration and the first six years of the obama administration, monday night on the communicators, we ask jeffrey eisenach about technology policy at the american enterprise institute and chris lewis, their thoughts
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about the impact of the proposal. nete think that the neutrality rules are working. they are widely popular. a majority of americans want to have clear rules for the road of the open internet. we are concerned that he used a path to review and potentially reveal -- >> from the internet's conception, the america -- internet was reopened. it wasn't a problem. there was no dystopian controlled internet with isps interfering with people's ability to post content. >> watch the communicators, up next on american history tv, we hear a panel of presidential
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historian discuss some of the country's most influential first ladies, relationships with their spouses, and difficulties they face in the white house. we also talk about presidential daughters, sisters, and nieces, who left their own mark on white house history. the new york historical society hosted this event. it is about an hour. >> good evening and welcome to the new york historical society. i'm louise mirrer, president and ceo, and mine thrilled -- and i am thrilled to see you in our beautiful auditorium this evening. tonight's program, women in the white house, as part of our bernard and irene schwartz distinguished speaker series. i would like to thank mr. s chwartz for his support that has allowed us to bring


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